The notion of a threat is central to the
theories of permissible wartime killing, because self-defense and defense of
others warrant most, if not all, wartime killing and they focus on threats.
Thus, we need a theory of threats. This theory attempts to provide one. It has
three parts. In the first part of the paper, I set out a theory of self-defense
and note that it focuses on threats. My assumption here is that defensive
purposes justify most, if not all, just wartime killing. In the second part, I
analyze the notion of a threat. I argue that a person is a threat if he brings
about a significant amount of expected injustice. In the third part, I briefly
note that given this analysis of a threat, a government may in some cases target
civilian leaders (including legislators), military-production workers, and
persons who provide for the needs of persons qua human beings (e.g., physicians
and farmers).

PART
ONE: SELF-DEFENSE FOCUSES ON THREATS

The Right of
Self-Defense is Held Against Threats

I shall assume
that just wartime killing is justified by self-defense and defense of others.
Following this assumption, I begin by briefly sketching out the right of
self-defense and then apply this right to wartime killing.

One person has a
right to use force against a second if and only if the first has a moral
liberty (i.e., under no moral duty not) to use force against the second and a
claim of non-interference against that person. Where the right is grounded in
the fact that the second person endangers the first, or does so in a particular
way, the right is one of self-defense. The right to self-defense is usually
accompanied by a claim to non-interference against third persons, although this
claim is not part of the right. For example, one person, Al, can have a right
to act in self-defense against a second, Bob, even though he has waived his
right to non-interference in the exercise of that right against another,
Charles. Under such circumstances Al has the right to defend himself against Bob’s
attempt to batter him by punching Bob in the face, even though he has no claim
against Charles that the latter allow him to punch Bob.

A couple of
intuitions confirm that we have such a right. First, a person who uses force
against an unjust aggressor does not act wrongfully or unjustly. Second, the
defender does not owe compensation for the harm he imposes on the unjust
aggressor in the course of defending himself. That both of these intuitions
apply in hypothetical cases in which there is neither a government nor a
society suggests that this right is a natural one.

The right to
self-defense is held against unjust threats. Roughly, a threat is a cause of a
process that will likely harm a person. A threat is unjust if and only if the
person performing it infringes on someone’s rights in bringing about the likely
harm. This notion might have to be modified to take into account omissions that
prevent or help to prevent a person from being harmed since omissions do not
cause other events.

Threats can
include persons who are morally innocent, i.e., they are not blameworthy for
being a threat. Here are two examples of innocent threats.

Psychotic Aggressor: A person in an
elevator goes berserk and attacks you with a knife. There is no escape: the
only way to avoid serious bodily harm or even death is to kill him. The
assailant acts purposely in the sense that his means further his aggressive
end. His actions are frenzied and it is clear that his conduct is
non-responsible. If he were brought to trial for his attack, he would have a
valid defense of insanity.[1]

Innocent Projectile: Someone picks up a
third party and throws him at you down at the bottom of a deep well. The third
party is innocent and a threat; had he chosen to launch himself at you in that
trajectory he would be an aggressor. Even though the falling person would
survive his fall onto you, you may use your ray gun to disintegrate the falling
body before it crushes and kills you.[2]

It is worth
noting that these cases differ from other cases that target innocents. Consider
the following.

Killing Children: A terrorist has
planted a bomb in an apartment complex in Israel,
but won’t say which one. An Israeli officer who knows of the danger but can’t
locate the bomb brings in the terrorist’s four children. He shoots one and
threatens to shoot one for every subsequent ten-minute period that the
terrorist holds out.

This defensive act, and ones like
it, is clearly unjust because the children are not threats.

The Right of
Self-Defense is Explained by Rights Forfeiture

The explanation of the right to
self-defense is that the aggressor forfeits various moral rights that
ordinarily protect him against harm. This forfeiture explains four features of
the right to self-defense. First, it explains the content of the right to
self-defense (in particular, the defender’s permission to touch or damage an
aggressor’s body or property). These are rights that are forfeited by the
unjust aggressor. Without such forfeiture, the defender’s actions would be
unjust and would ground a claim to compensation on behalf of the aggressor.
Neither intuitively seems to be correct, even in cases where the aggressor is
innocent. Second, it explains why the aggressor may not have a justice-based
claim against defensive action but third parties might. That is, if certain
parties (e.g., the government) gain the right to any and all defensive action,
then they might have a claim against a person acting in self-defense. Third,
the forfeiture notion explains why a likely victim has a right to take
defensive action but that this right by itself doesn’t entail that he ought to
do so. The idea here is that rights protect act-options, but don’t guide the
choice between the various options.[3]
Fourth, the forfeiture account fits nicely with the notion of rights as forming
a perimeter of non-interference again to create space for the making of
choices. Persons thereby have a right to protect this perimeter regardless of
whether someone is morally responsible for crossing into it.

If forfeiture
grounds the right to self-defense, then the right is grounded by another’s act.
That is, the right should be viewed as having the following form.

(1)If person B … to A, then A has a right to self-defense
against B.

This is distinct from a conditional
right (e.g., person A has the right to use-force-against-B-if-B …). Proposition
(1) better captures the notion that the right is created through B’s
forfeiture. In particular, it better aligns with the creation of a new claim
and liberty in A.[4]
If, however, contrary to my claim, the right to self-defense is conditional,
nothing in my overall argument changes.

Forfeiture theory has come under a number
of criticisms. First, it doesn’t explain why the aggressor forfeits his rights.
Instead, the theory is circular in that it merely presupposes that self-defense
is morally just rather than explaining it. This can be seen in the theory’s ad
hoc explanation of the different constraints on just self-defense: necessity,
proportionality, and imminence conditions on self-defense. This can also be
seen in the theory’s inability to explain why persons can lose rights on the
basis of something for which they are not morally responsible (e.g., consider Innocent Projectile). Second, the theory
is so vague as to be useless as a guide in deciding when defensive force is
just. In particular, the theory is unable to specify the rights that an
attacker forfeits, the degree to which he forfeits them, and the duration of
forfeiture. For example, does a rapist forfeit his right not to be raped,
equivalent rights, or his right to life?[5]
Both of these criticisms can be overcome if forfeiture is seen as a primitive
and relatively fundamental feature of a person’s rights over his body and
property.[6]
If this is correct, then the right’s content can be discovered via our pattern
of intuitions. It would then be argued that our intuitions are determinate
enough to support a clear and coherent pattern that allows forfeiture to
explain when self-defense is just, why forfeiture need not presuppose moral responsibility,
and when and how it occurs. This is particularly true when rights are viewed as
having a particular role, such as protecting or promoting persons’ autonomy or
interests.

The likely victim
alone has the right to self-defense. If the right to self-defense is intimately
connected to a person’s rights over his body and property, then it appears that
he exclusively has the right to self-defense. The antecedent rests on the
notion that it is a person’s right over her body or property that makes the
attack unjust and it is presumably this injustice (or the harm that will likely
accompany it) that explains the right forfeiture.

In addition, it
seems coherent for a likely victim to defend herself against attack while at
the same time denying others the right to act on her behalf. This is analogous
to a case in which a person might demand that a promise be fulfilled, yet deny
third parties the right to help her enforce it.

This forfeiture
account also explains the moral permission to attack various bystanders.

Culpable Bystander: A mineshaft has
collapsed, leaving two miners trapped in a small open space. A radio
communication has informed them that rescuers will reach them in five hours,
but their instruments indicate that, while there is enough oxygen to allow one
of them to survive for more than five hours, their oxygen supply will be
depleted within three hours if both continue to breathe. … [O]ne of the minors
(call him the “innocent miner”) then learns two facts: first, that the other
miner (the culpable miner”) deliberately engineered the collapse of the shaft
in an effort to kill him and, second, that the culpable miner has a small
oxygen tank that will allow him to survive for two hours after the shaft runs
out. The innocent miner therefore has two options: he can do nothing and die of
asphyxiation while the culpable miner survives or he can take the culpable
miner by force, thereby killing the culpable miner in self-preservation.[7]

Intuitively, the innocent miner may
justly kill the culpable miner to take his small oxygen tank. This is true
regardless of whether the culpable miner is viewed as a current threat since he
caused the complex state that endangers the other miner’s life or whether the
culpable miner is viewed as a past cause of the current threat. The forfeiture
account explains this because it explains why the culpable wrongdoer is neither
unjustly treated nor owed (nor his estate owed) compensation for the killing.
If the miner with the small tank were not a cause, and perhaps not an unjust
cause, of the situation, then it is not clear that the innocent miner would be
justly permitted to attack him.

If the forfeiture explanation is correct,
then the right to self-defense is an objective rather than subjective one in
that it focuses on whether a person actually faces a threat, not whether he
believes that he faces such a threat. This objective interpretation allows us
to distinguish, as we ordinarily do, between just and unjust self-defense and
whether the agent is blameworthy for the defensive violence. It also avoids the
oddness of one person gaining a right against another merely because the latter
appears to be something. This is similar to the way in which in other areas of
morality, merely appearing one way doesn’t ground a Hohfeldian moral claim or
liberty. For example, merely appearing to be dead or to promise to do something
doesn’t ground a right in another.

Limitations on
the Right of Self-Defense

The right to self-defense is often thought
to include various conditions, namely that the force used be (a) necessary to
avoid (b) an imminent threat and (c) that the harm caused be proportional to
that avoided. I will argue that the proportionality requirement is the only one
and that it applies in an odd manner. There is no necessity requirement for
self-defense. To see this, imagine that in Innocent
Projectile, there is a 5% rather than 0% chance that the projectile will
miss the person at the bottom of the well due to a small chance that the
projectile will be sufficiently dismembered by the sharp edges on the side of
the well. The fact that killing the innocent projectile is not necessary for
the defender to save his life does not undermine his right to use lethal force.
Nor would this requirement allow for clearly just cases of self-defense when
the defender stands very little chance of winning.

Imminence, understood as temporal distance
between the attacker’s act and the harm, is also irrelevant. Once we control
for the likelihood and severity of harm, temporal distance is no more relevant
in legitimating defensive force than is physical distance. For example,
consider a case in which terrorist is activating a series of well-hidden and
undetectable bombs. So long as the likelihood and severity of the threatened
harm is constant, the time until the bomb explodes and the harm occurs, e.g., 2
hours versus 5 years, is irrelevant to the right to use force to prevent the
bombs from being activated. There might be consequentialist reasons for making
the three conditions part of the law, e.g., to discourage people from defending
themselves except in the clearest of cases, but these are not relevant to the
right to self-defense.

Proportionality,
if it is relevant at all, does not hold in a straightforward manner. Consider
the following case.

Hell’s Angels: Six members of a Hell’s
Angels’ chapter are about to rape a seventeen-year-old girl. The only way for
her to protect herself is to shoot them with a machine gun she has taken off
one of their choppers. Given the close range and the gun’s inaccuracy and
power, her using it will likely kill most, if not all, of the six.

Such defensive force seems
permissible even though death is worse than rape and even though six persons
will die. Even if proportionality is viewed in terms of goodness rather than
net harm and even if the Angels’ well-being is discounted or even has negative
value in virtue of their vicious nature, this still does not support the
proportionality requirement.[8]
To see this, consider the following case.

Blood Bank: A soldier has a rare type of
blood that has been and will be continue to be used to save the lives of fellow
soldiers who desperately need blood transfusions. In order to protect his life
and ensure that he does not engage in any sexual activity that will contaminate
his blood, the army orders him stationed in an administrative post in a
hospital. There he tries to rape a nurse. The only way she has to protect
herself is to inject him with a needle that contains so much morphine that it
will kill him.

Again, it intuitively seems that
this use of defensive force is just even though doing so brings about overall
worse results.[9]
There still does seem to be something like a proportionality requirement. For
example, it intuitively seems unjust to shoot someone in order to prevent him
from stealing a candy bar. However, the limits of defensive violence
intuitively are unclear. This can be seen, for example, in that the
disproportionate results are far worse in Blood
Bank than in the candy-bar-stealing case. Nevertheless, we can adopt the
following sufficient condition for proportionality: an act of self-defense is
proportionate if it brings about overall good results and better results than
any other act or omission available to the agent.[10]

Conclusion

If this analysis is correct, then we
should accept the following claims.

(2)A person has a right to self-defense against, and only
against, unjust threats to his well-being.

(3)A threat is a cause of a process that will likely harm
someone.

(4)The explanation of the right to self-defense is that
the threat (and perhaps agent of omission) forfeits some of his moral rights.

(5)The right to self-defense is not subject to necessity
and imminence constraints.

(6)An act of self-defense is proportionate if it brings
about overall good results and better results than any other act available to
the agent.

Just Wartime
Killing Focuses on Whether a Person is a Threat

A right is a claim
held by one individual against another. This is because they are designed to
protect autonomy or interests against others, depending on the theory of
rights, and only individuals have those features. Rights can be gained, lost,
or modified. One way in which they can be modified is if they are combined.
They can be combined when one person gains a right against another with regard
to how the second exercises his right. An example of this occurs in the context
of a partnership, where each partner has a right to use the firm’s assets only
if he gets the permission of a majority of his partners. No matter how rights are
gained, lost, or modified, they are still held by individuals.

If this is
correct, then an individual can lose a right only if he does something (e.g.,
attacks another), changes in some relevant way (e.g., ceases to be autonomous
because of Alzheimer’s disease), or there is a change in the things they own
(e.g., his water holes dry up). In the context of potential military targets,
soldiers and other relevant persons don’t change in some relevant way, nor are
there relevant changes in the things they own. Hence, if they lose rights, they
do so by doing something, specifically by waiving or forfeiting them.

Waiver occurs when
a person validly consents or promises to give up a right. For example, a person
waives his right to his car when he sells it. However, in most cases, soldiers
and others do not waive their rights to be killed during wartime. Hence, if
soldiers and others lose their right to be killed, they usually do so by
forfeiting them. Other than by being a threat to another’s person or property,
there doesn’t seem to be other ways for them to do this. This is true
regardless of how rights have been combined into the collections that
constitute nations. Hence, just wartime killing focuses on whether a person is
a threat. As a result, we’ll need an account of threats that will allow us to
identify who may be properly disabled or killed and it is to this we now
turn.

PART
TWO: THE NATURE OF UNJUST THREATS

Threats

Threats
are posed by events involving objects. For simplicity, I will talk as if objects
alone pose threats. A threat is something that causes or enables a process that
makes it more likely that a person’s life will go worse.[11]
Not all injuries are produced via cause. A person’s act enables harm when it
brings about a state that makes it more likely that a person will be harmed,
but does not cause the harm.[12]
For example, an attacker might remove a warning sign to a washed out bridge.
The removal doesn’t cause the resulting crash since the absence of a sign isn’t
an event. Similarly, if free human thoughts or actions are ones that are not
caused by previous events, then an officer’s commands enable but do not cause
his platoon to attack. If, for simplicity, we ignore the role of enablers, then
a threat is a cause of a process that makes it more likely that a person will
be harmed. For example, bears, assassins, viruses, and neighbors who covet
one’s wife are all threats.

In
discussing a threat’s effects, there are many categories that are relevant.
Discussions of effects distinguish between intended and unintended effects,
direct and indirect effects, gross and net effects, anticipated (e.g.,
expected) and actual effects, and particular effects and types of effects. In
addition, a threatening act can also have multiple parts. For example, where a
pharmacist promises to sell a person a blood thinner and instead gives him a
sugar pill, the former might be considered to have endangered the latter even
though the endangerment is comprised of a number of component acts.

B.Unjust Threats

A threat is unjust if
and only if the person performing it infringes on someone’s rights. Not all
threats are unjust. For example, a suitor who tries to win the hand of a man’s
fiancée is a severe threat, but not an unjust one. Whether a mere attempt
infringes on a second person’s moral right depends on whether persons have
moral rights against having certain risks imposed. For example, if one person
plays Russian roulette on a second when the second one is sleeping, the first
might be seen to infringe on the second’s moral right.[13]
I shall assume that persons have rights not be exposed to certain risks.

Defensive
violence is justified only if it is in response to an unjust threat. We are now
in a position to set out the criteria for an unjust threat.

(7)A
person, X, poses an unjust threat to a second, Y, if and only if X’s act
infringes on Y’s moral right and brings about a process that makes it more
likely that Y is harmed.

Not all unjust threatens warrant killing or grievous bodily
harm. Hence, we need to identify the magnitude of threats.

C.The Magnitude of Unjust Threats

Any amount of an
unjust threat grounds defensive action, although this action is constrained by
the magnitude of the threat. One may not, for example, shoot a shoplifter or
trespasser. What we need is a way to assess the magnitude of an unjust threat
as a way of determining when a lethal response is just.

The magnitude is
a function of some bad result of the attacker’s act, a result that would have
occurred had the defender not responded to it. This bad result might be thought
to be a function of the harm, injustice, or moral badness that the attacker
would have brought about (or would have likely brought about) but for the
defensive response. The first approach holds that the magnitude of the unjust
threat is a function of the harm that the attack would have brought about. It
runs into some troubles with aggression that has indirect and unintended
benefits. Consider the following case.

Gambler: Louie
is a degenerate gambler who borrows money from the Gambino family and then
fails to pay back all the interest (although he does pay back the principal
plus 20%). As a result, a Gambino soldier attempts to force him to swallow a
chemical stolen from the local pharmacy. Louie stabs the soldier in self-defense.
The poisoning would have made Louie very ill but also would have killed his
cancer, thereby extending his life by a couple of decades.

The stabbing intuitively seems to
be just even though it would not have brought about net harm. It might be that
this harm-based approach is capable of being salvaged by focusing on the direct
or intended harms. A direct effect is usually viewed in one that has an
immediate causal nexus, a foreseeable connection, or one for which the agent is
morally responsible. An intentional effect is one that a person sees as his
goal or the means to his goal. It is not clear that this will work for
aggressors who neither form the relevant intentions, nor are morally
responsible for their aggression (e.g., Innocent
Projectile). The assumption behind this last point is that the causal-nexus
and foreseeable-effect versions of the directness theory don’t work.

A second approach
holds that the magnitude of the threat is a function of the stringency of the
right that the soldier would have infringed on. In general, the first two
approaches will likely align since the stringency of a right tends to correlate
with the importance of the interest that it protects. This approach, however,
is not burdened by concerns over indirect and unintended benefits.

A third approach
holds that the magnitude of a threat as a function of how much worse it would
have made the world. This approach should be rejected, since it suggests that
the threat is a minor one if Louie is a vicious person and hence one whose
death would have made the world a better place.

This second
approach raises a few concerns. First, it puts enormous weight on moral rights.
However, if justice (i.e., the perimeter of moral rights) sets the boundaries
on spheres of non-interference and if is independent of other types of moral
considerations, such as utility, then it will already have to bear much of this
weight. Second, it requires that we be able to compare degrees of injustice. I
would suggest that this shouldn’t pose that a problem since we already do this
in setting punishment ceilings. For example, backward-looking justifications of
punishment, assuming they address the issue of how much to punish, require that
we assess past wrongdoings in terms of their seriousness and then assign
punishment ceilings according to a shared metric. The seriousness of a
wrongdoing might be filled out in terms of the harm that a particular injustice
caused or typically caused, the evilness of the intention or motive that
brought about the act or that typically did so, the importance of the right
infringed or typically infringed by the act, or something else. An analogous
approach can be used in this context so long as it is consistent with the
possibility of the aggressor’s being blameless. A third concern consists of
measuring contribution when there are different persons contributing to the
unjust threat. Here the best approach in at least some contexts is to use the
notion of marginal contribution to an injustice that is similar to one used to
measure the economic value of a factor of production.

The next problem
that arises is the degree of unjust threat that warrants a killing. For my
purposes we can rely on an intuitively satisfying sufficient condition for just
defensive killing. If we rely on Hell’s
Angels and Blood Bank, then we
should conclude that when one person poses a significant unjust threat of a
rape, he may justly be killed. A similar thing is true of those pose an unjust
threat of death or severe bodily injury. By focusing on sufficient conditions
for lethal defensive force, we are able to sidestep issues about the degree of
injustice necessary for it.

If the above
arguments succeed, then we should adopt the following conclusions.

(8)The degree of an unjust threat is equal to its expected
degree of injustice.

(9)The expected degree of injustice is equal to the
stringency of the right that the unjust aggressor would have infringed on but
for the defensive action.

(10)If an unjust threat is at least as serious as a
significant chance of rape, then, as a matter of justice, it warrants a lethal
response.

Threats and
Coordination

Where there are multiple agents and they
act in concert to kill someone, the right of self-defense would seem to
generate forfeiture against any member of the group rather than merely against
the persons carrying out the last part of the attack.[14]
Since the group functions as an individual, they each forfeit the rights that
would be forfeited by an individual who performed all the actions of the group.
For example, since an individual who tried to kill an innocent would forfeit
his right to life, the members of the group that plan and attempt to do the
same also forfeit this right, at least with regard to defensive action. The
explanation for this is that each member is a sustaining cause of a lethal
threat and hence forfeits his right to life. This is true even where one
conspirator’s contribution is neither necessary nor sufficient for the type of
lethal unjust threat posed (i.e., there is causal overdetermination of the
unjust threat).[15]

This coordination requirement prevents
forfeiture from applying to many independent and innocent contributors to an
unjust threat. Consider the following case.

The Diabetic’s Mother: A homicidal
diabetic is chasing Mary through the woods

of an enclosed
preserve, trying to kill her for sport with a pistol. However, because of his
medical condition, he must return to a cabin in the middle of the preserve
every hour in order that his aged mother can give him an insulin shot. Without
it, he will take ill and die and will thus be forced to abandon his attempt to
kill her. Blocking that insulin shot seems Mary’s only hope and the only
reliable way to do this is for her to kill the mother.[16]

Here intuitions differ as to
whether Mary may kill the mother.[17]
This may depend on the degree of threat and how one determines it for different
causal contributions to an aggressor. It intuitively seems that Mary may not
kill the person who delivers food to them or the utility that provides electricity
to the cabin thereby allowing for the mother to inject the insulin. However, it
also seems that Mary may do so if all these persons conspired with a sane
diabetic to kill her and are doing their part. It might seem that this is
explained by the moral guilt of the parties, but this isn’t correct since they
may be killed even if they are not responsible (e.g., they made a reasonable
error about Mary’s identity or are mentally ill). It is unclear whether the
relation of forfeiture to joint projects is a result of the participants
causing the threat, intentionally causing the threat, being part of a
threat-like project, or something else.

Conclusion

We thus end up
with the following conclusions.

(11)The degree of an unjust threat is equal to its expected
degree of injustice.

(12)The expected degree of injustice is equal to the
stringency of the right that the unjust aggressor would have infringed on but
for the defensive action.

(13)If an unjust threat is at least as serious as a
significant chance of rape, then, as a matter of justice, it warrants a lethal
response.

(14)If a number of persons jointly pose an unjust threat,
then each one may, as a matter of justice, be treated as if he alone poses
it.

Using these notions, many different
types of persons might end up being legitimate wartime targets.

PART
THREE: WHO IS A THREAT DURING WARTIME

When applied to
persons in an aggressor country, the application is straightforward. When a
person’s action threatens as much injustice as a rape, the likely victim or his
agent may use lethal force. Whether a person is a combatant or blameworthy is
irrelevant. For an unjust aggressor, its military leaders are clearly
legitimate targets, assuming they jointly bring about or increase a sufficient
unjust threat. So are civilian leaders who do so. The fact that a leader is a
legislator no more protects him against defensive violence than it protects
drug dealers who democratically voted to pay for a hit on a new salesperson in
their city. The fact that any one legislator’s vote is not necessary for his
country’s unjust war is similar to other cases of overdetermination of an
unjust threat. The same is true with regard to medics, farmers, and production
workers and other persons whose marginal contribution generates an enough of an
unjust threat, particularly if they are judged part of a joint project.

PART
FOUR: CONCLUSION

In this paper, I assumed that just
wartime killing is justified by self-defense and defense of others.
Self-defense focuses on unjust threats. One person is an unjust threat to
another if the first does something that infringes on the second’s moral rights
and thereby makes it more likely that the second is harmed. I then noted that
threats come in degrees. I argued that if a person poses as much unjust threat
as one who imposes a significant chance of rape on someone, then that person
may, as a matter of justice, be killed. I speculated in a country that is
engaged in an unjust aggressive war, this might make many different people
legitimate targets.

NOTES

[1] This example comes from George P. Fletcher,
“Proportionality and the Psychotic Aggressor: A Vignette in Comparative
Criminal Theory,” Israel Law Review 8
(1973): 367-390. A similar example occurs in Sanford H. Kadish, “Respect for
Life and Regard for Rights in the Criminal Law,” California Law Review 64 (1976): 889.

[4] In addition, the logic of a conditional right is not
obvious. If we conjoin the statements (a) person A has the right to
use-force-against-B-if-B … and (b) B …, it is not clear what follows. This is
because the conditional is contained within the scope of the operator “has a
right to” and this makes the logic less transparent than if rights are
forfeited and corresponding ones created. The idea for this point comes from
Jeremy Waldron, The Right to Private
Property (Oxford: Clarendon Press, 1988), 118-1222.

[6] An example of his strategy can be seen in Stephen
Kershnar, “The Structure of Rights Forfeiture in the Context of Culpable
Wrongdoing,” Philosophia, 29
(2002): 57-88.

[7] This example comes from Jeff McMahan, “Self-Defense
and the Problem of the Innocent Attacker,” Ethics
104 (1004): 258. It should be noted that McMahan views the culpable miner as a
bystander rather than attacker, which I leave open, and rejects the right-based
analysis of permissible self-defense. Ibid., 258 and 275-281. On his account,
it is moral responsibility for initiating or sustaining a threat (or in some
cases, for failing to eliminate it) that makes a person liable to defensive
violence. McMahan, Jeff McMahan, “The Ethics of Killing in War,” Ethics 114 (2004): 718-722, esp. 721.

[8] The notion that the well-being of persons with
negative desert has negative intrinsic value is defended in Fred Feldman,
“Adjusting Utility for Justice: A Consequentialist Reply to the Objection from
Justice,” Philosophy and Phenomenological
Research 55 (1995): 567-585; Thomas Hurka, “The Common Structure of Virtue
and Desert,” Ethics 112 (2001): 6-31.

[9] Thomas Hurka notes that one some accounts, the costs
of defensive violence, at least in the context of war, exclude other agents’
wrongful choices, even when they result from the agent’s defensive actions.
Thomas Hurka, “Proportionality in the Morality of War,” Philosophy & Public Affairs 33 (2005): 34-66. Even if this is correct, and this is not
obvious, it is irrelevant to cases like Blood Bank.

[10] The intent condition is likely superfluous. I include
it since on some accounts some benefits of wartime killing (e.g., economic
growth) do not count toward the proportionality condition because they are not
contained in the just aims of the just side. Hurka, “Proportionality in the
Morality of War.”

[11] More specifically, since causes are events, a threat
is an event that that involves a thing. However, for simplicity, I will talks
as if things, such as persons, are threats.

[14] The key feature here appears to be shared intent.
Michael Bratman sets out the shared intent in his “Shared Intention,” Ethics 104 (1993): 97-113, esp. 106. On
Bratman’s account, a shared intention occurs where two persons share the same
goal, where their sharing the same goal rests in part on the mutual recognition
that they share the same goal and plans by which to achieve the goal.

[15] Here the member’s contribution might be cause of the
particular threat even if it isn’t the cause of the type of threat. The idea
here is that a threatening event is a particular event and that the causes of
an event are all necessary conditions of it. The notion that a cause is an
essential feature of a particular event is seen in Peter van Inwagen, “Ability
and Responsibility,” in John Martin Fischer, ed., Moral Responsibility (Ithaca: Cornell University Press, 1986),
158-160.

[17] For those who think that Mary can’t kill the mother,
it’s worth considering whether it matters whether the mother repeatedly fixes
the diabetic’s gun after it jams and reloads it for him (she thinks he’s
shooting rats at the local farm) or shoots him with insulin. It’s hard to see
why this should matter and yet the former is analogous to persons loading
howitzers in the military, i.e., paradigm legitimate targets.